United States District Court, D. New Jersey
Michael A. Shipp United States District Judge
matter comes before the Court on Defendant Spark Energy,
LLC's ("Defendant") Third Motion to Dismiss and
Motion to Strike Class Allegations. (ECF No. 54.) Plaintiff
Janet Rolland ("Plaintiff) filed a Second Amended
Complaint ("SAC") on August 17, 2018. (ECF No. 48.)
Plaintiff opposed Defendant's Motion (ECF No. 59), and
Defendant replied (ECF No. 67). The Court has carefully
considered the parties' submissions and decides the
matter without oral argument pursuant to Local Civil Rule
78.1. For the reasons set forth below, the Court grants in
part and denies in part Defendant's Motion.
parties are familiar with the matter's factual history,
and therefore, the Court only repeats those facts necessary
to resolve the instant motion. Plaintiff enrolled in
Defendant's electricity services from February 25, 2012
to December 24, 2014. (SAC ¶¶7, 24.) Defendant
offered a twelve-month low, fixed-rate for new customers.
(Id. ¶¶ 2, 17.) After twelve billing
cycles, Defendant placed Plaintiff on a month-to-month
variable rate plan ("Variable Rate Plan").
(Id. ¶ 17.) Defendant notified Plaintiff before
the last billing cycle that her initial fixed-rate services
were ending and she would be automatically enrolled in the
Variable Rate Plan if she did not terminate her service.
(Id. ¶ 20.) Plaintiff did not respond and was
automatically enrolled into the Variable Rate Plan.
(Id.) The price of the Variable Rate Plan was higher
than the initial fixed rate. (Id. ¶¶
17-31.) According to Plaintiff, the variable rare jumped 108%
from the introductory fixed rate at the end of the first
billing cycle, and Defendant's prices were 93% to 114%
higher than competitors' rates. (Id. ¶ 24.)
moves to dismiss Count One of Plaintiff s SAC. (Id.
¶¶ 54-66.) Plaintiff filed two previous complaints
(ECF Nos. 30, 48) after this Court granted Defendant's
Motions to Dismiss without prejudice (ECF Nos. 28, 44). The
Court c;enied Defendant's original Motion to Dismiss
Plaintiff s breach of contract and breach of implied covenant
of good faith and fair dealing claims. (First Mot. to
Dismiss, ECF No. 28.) The Court, however, granted
Defendant's Motion to Dismiss Plaintiffs New Jersey
Consumer Fraud Act ("NJCFA") claim, finding
Plaintiff did not satisfy Federal Rule of Civil
Procedure 9(b)'s pleading standards as to the
NJCFA. (Dec. 7, 2017 Hr'g Tr. 6:7-12, ECF No. 34.)
Specifically, the Court cited to Melville v. Spark
Energy, Inc., No. 15-8706, 2016 WL 6775635 (P.N.J. Nov.
15, 2016), and Vitale v. U.S. Gas & Electric,
Inc., No. 14-4464, 2016 WL 1060807 (D.N.J. Mar. 16,
2016), as setting the appropriate pleading standard, and
provided Plaintiff leave to file an amended complaint.
(Id. at 5:23-6:12.)
subsequently filed an Amended Complaint. (ECF No. 30.)
Defendant moved to dismiss, arguing Plaintiff failed to
satisfactorily plead an NJCFA claim. (Second Mot. to Dismiss
8-13, ECF No. 37.) In its July 11, 2018 Memorandum Opinion,
the Court granted Defendant's motion, finding Plaintiff
again failed to provide sufficiently detailed allegations to
plead an NJCFA claim. (July 11, 2018 Mem. Op. 6, ECF No. 43.)
The Court further reiterated its prior determination that
Melville and Vitale set forth the proper
NJCFA pleading standard, and found Plaintiffs Amended
Complaint failed to "allege that Plaintiff purchased
electricity through Defendant based on any specific
representation (s), or that price was considered by
Plaintiff 'when purchasing from Defendant."
(Id. at 5-6.) The Court granted Plaintiff one final
opportunity to cure the deficiencies in her Amended
Complaint. (Id. at 7.)
subsequently filed the SAC. (See generally SAC.)
Currently before the Court is Defendant's third Motion to
Dismiss Plaintiffs NJCFA claim. (See Def.'s
Moving Br., ECF No. 54-1.) Defendant moves to dismiss with
prejudice Plaintiffs NJCFA claim, and further moves to
dismiss or strike Plaintiffs nationwide class allegations.
analyzing a Rule 12(b)(6) motion, the district court conducts
a three-part analysis. First, the court must "tak[e]
note of the elements a plaintiff must plead to state a
claim." Ashcroft v. Iqbal, 556 U.S. 662, 675
(2009). Second, the court must accept as true all of a
plaintiffs well-pleaded factual allegations and construe the
complaint in the light most favorable to the plaintiff.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009) (citation omitted). The court, however, must disregard
any conclusory allegations proffered in the complaint.
Id. at 210-11. Finally, the court must determine
whether the "facts alleged in the complaint are
sufficient to show that the plaintiff has a 'plausible
claim for relief.'" Id. at 211 (quoting
Iqbal, 556 U.S. at 679). "[W]here the
well-pleaded facts do not permit the court to infer more than
mere possibility of misconduct," the claim is
insufficient. Iqbal, 556 U.S. at 679.
plaintiff pleads fraud, however, the plaintiff "must
meet a heightened pleading standard under [Rule] 9(b)."
Zuniga v. Am. Home Mortg., No. 14-2973, 2016 WL
6647932, at *2 (D.N.J. Nov. 8, 2016). The NJCFA is subject to
the heightened standard of Rule 9(b). Smojlaj v. Campbell
Soup Co., 782 F.Supp.2d 84, 98 (D.N.J. 2011) (citing
F.D.I.C v. Bathgate, 27 F.3d 850, 876-77 (3d Cir,
1994)). "In alleging fraud . . ., a party must state
with particularity the circumstances constituting fraud . . .
." Fed.R.Civ.P. 9(b). "A plaintiff alleging fraud
must therefore support its allegations 'with all of the
essential factual background that would accompany the first
paragraph of any newspaper story-that is, the who, what,
when, where and how of the events at issue."'
U.S. ex ret, Moore & Co., P.A. v. Majestic Blue
Fisheries, LLC, 812 F.3d 294, 307 (3d Cir. 2016)
(quoting In re Rockefeller Ctr. Props., Inc. Sec.
Litig., 3 11 F.3d 198, 217 (3d Cir. 2002)). "To
satisfy this standard, the plaintiff must plead or allege the
date, time and place of the alleged fraud or otherwise inject
precision or some measure of substantiation into a fraud
allegation." Frederico v. Home Depot, 507 F.3d
188, 200 (3d Cir. 2007). The purpose of Rule 9(b) is "to
place the defendants on notice of the precise misconduct with
which they are charged, and to safeguard defendants against
spurious charges of. . . fraudulent behavior."
Seville Indus. Mack Corp. v. Southmost Mack Corp.,
742 F.2d 786, 791 (3d Cir. 1984).
plaintiff seeking a claim under the NJCFA must present
evidence of: (1) unlawful conduct; (2) an ascertainable loss
by the plaintiff; and (3) a causal relationship between the
unlawful conduct and the ascertainable loss.
Melville, 2016 WL 6775635, at *2 (citing
hit 7 Union of Operating Eng'gs Local No. 68
Welfare Fund v. Merck & Co., Inc., 929 A.2d 1076,
1086 (N.J. 2007)); see also N.J.S.A. 56:8-19.
Unlawful conduct includes, "any unconscionable
commercial practice, deception, fraud, false pretense, false
promise, [or] misrepresentation ... in connection with the
sale or advertisement of any merchandise or real estate. .
.." N.J.S.A. 56:8-2. A plaintiff must allege
"substantial aggravating circumstances" to state a
valid NJCFA claim. Neuss v. Rubi Rose, LLC, No.
16-2339, 2017 WL 2367056, at *7 (D.N.J. May 31, 2017)
under Rule 12(b)(1), a party may move to dismiss a complaint
for lack of subject matter jurisdiction. Because federal
courts are courts of limited jurisdiction, the party seeking
to invoke the court's jurisdiction bears the burden of
proving the existence of subject matter jurisdiction. See
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,